Divorce can be complicated. But being a minority can make things even more complex. An example would be a First Nation using their status to influence family court disputes.

A First Nations father who asked the Ontario Superior Court of Justice (ONSC) to vary a parenting schedule drew on government and court decisions that acknowledged his daughters’ birthright. The ONSC agreed the girls’ First Nations heritage, community and language were pivotal to their development. But ultimately, the judge ruled, the “sole consideration” in custody and access decisions remains the best interests of the child.

Your Birthright Matters

As the Ontario Superior Court of Justice confirmed:

“The child’s best interests will normally reflect the importance of the child maintaining a connection with their First Nation’s heritage, as well as other factors unique to the child in their particular circumstances.”

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After an initial order in 2012, “Tommy” and his ex-spouse “Jan” were divorced in a Quebec court in 2016. He lived in Ontario, while she made her home 65 kilometers away, just across the border in Quebec. Their daughters, nine and 13, lived with their mother. Jan was non-Aboriginal and supported Tommy’s desire to keep their daughters engaged with their First Nations heritage.

What Tommy sought was a change in the girls’ custodial situation. He wanted his daughters to either live with him or attend school in Ontario. He also asked the court for more access on weekends to allow the girls to attend Aboriginal Day every June 21 (now known as National Indigenous Peoples Day) and powwows in or near his home. Jan resisted and petitioned to have what she considered Tommy’s too-frequent requests to vary court orders blocked. She asked that Tommy be required to seek the court’s leave before applying for variations.

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Was there any change in the parties’ circumstances to support a new parenting schedule?

If so, what parenting arrangement was in the children’s best interests?

Should Tommy be required to get permission to bring motions to vary that schedule?

The Parents Didn’t Agree

Tommy argued that Jan was not supportive of the children’s First Nations heritage. Further, their school calendar in Ontario interfered with the girls’ ability to take part in Indigenous events. He claimed their daughters wanted to live with him because they could “connect better” with their heritage and learn the Ojibwe language.

Jan said nothing had changed since their 2016 divorce. She relented that the pair sometimes quarreled about arranging their daughters’ schedules to attend Aboriginal Day or powwows. But she said Tommy had ignored their divorce order and was acting on his own.

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Nothing Had Changed Since The Divorce

When the court examined Tommy’s evidence, it could not find any material changes affecting the girls’ conditions, means, needs or other circumstances since 2016. The parents’ ability to meet their daughters’ needs had not changed. Nor had anything unforseen by the 2016 divorce order occurred.

The documents Tommy gave the court didn’t meet the standard necessary for trial. Several affidavits had “significant evidence” on key issues. They included his statements about his daughters’ wishes. Letters and information from third parties were included. But they were not sworn testimonials. The judge was firm:

“The fact that the rules allow for this matter to proceed by affidavit is not an invitation to water down the rules of evidence,” she commented.

Is The Evidence Relevant?

Tommy cited other evidence.

The December 2017 Anishinabek Nation Education Agreement Act gave participating First Nations the right to make laws about education on reserves, provided students could transfer back and forth between Ontario’s public school system without penalty. The Truth and Reconciliation Commission of Canada’s Calls to Action report was released in 2015, after the couple’s initial 2012 divorce order. Recent amendments to child and family services legislation were also mentioned.

The court agreed this evidence was relevant. But the children’s best interests remained the overriding concern.

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Proving The Children’s Interests

Having affidavits about the children’s wishes was insufficient. Tommy’s protests that the girls wanted to live with their father and go to school in Ontario so they could attend Indigenous events failed. In fact, the only evidence of their wishes was their father’s statements. Jan said she was unaware of any such desires.

The court ruled Tommy’s evidence was hearsay. He could have, but did not, file a Voice of the Child Report. He also gave no context for the girls’ statements, the actual words they used, when and where the statements were made or what his or others’ involvement was in obtaining the statements. With a “significant risk” Tommy’s comments were self-serving, the court ruled his statements inadmissable.

Mother’s Point Of View

The judge also disagreed that Jan did not value the girls’ connection to their First Nations heritage and language. Jan seemed supportive of her daughters going to powwows, visiting their father’s family and, if desired, learning to speak Ojibwe.

The girls’ First Nation heritage had played a large part in both the 2012 and 2016 divorce orders. Nothing had changed since. Jan allowed the girls to miss school for Aboriginal Day, which they attended with their father as provided in the 2016 divorce order. While the 2016 order hadn’t anticipated that school calendars might be different between Quebec and Ontario, this material change had not interfered with their attendance at First Nations events. Nor were school support services for Indigineous students superior in Ontario compared to Quebec, another of Tommy’s points.

Why Parental Plans Matter

Although Tommy wanted his daughters to live with him, he had not prepared a detailed parenting plan. He did not state what school they would attend and how they would get there or show how their new school would be a better choice. He also didn’t explain how Jan would be supported to continue her relationship with the children. Left out of his application was how the girls would stay in touch with family and friends or even adjust to a move.

His alternative option, that Jan drive them to and from Ontario every day to attend school, was also sketchy. The trip was 65 kilometres each way. The court lacked any information on how that would affect the girls, including their schoolwork and outside activities.

The Outcome Of The Courts

The judge did agree that going to Aboriginal Day and powwows was important to the girls’ development. She formalized that part of the divorce order. If the parents could agree on wording, she would create a single, varied order. That would reduce confusion in future.

What she did not support was Jan’s request to prevent Tommy from making future requests to change that order. His requests weren’t that frequent. And the court had other ways to prevent such abuses.

ClearWay Law’s family law lawyers can help you uphold your children’s First Nations heritage. For advice, call our law firm hotline at 1-844-466-6529 or email info (at) clearwaylaw.com

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